3 Erroneous Anti-Roe Arguments from the Latest Congressional Hearings

I couldn’t begin to tell you why I did this, but I spent 11 hours this week watching the live streams of the US House and Senate’s discussions of the impact of the overturning of Roe v. Wade. I thought I’d at least make it not a complete waste of time by turning it into a blog post.

And yes, I’m tired of talking about abortion, too. But this isn’t the time to stop talking about it. In a perfect world, we would just have the reproductive justice we so desperately need, and I could keep writing posts about evolution, science history, and reading nonfiction. But we don’t, so I’m not going back to business as usual. Not yet.

Meet the panels

The three hearings included a total of 15 expert witnesses, 11 of which were pro-abortion and four of which were anti-abortion. Day 1 was the Senate Judiciary Committee, Day 2 was the House Oversight Committee, and Day 3 was the House Judiciary Committee.

Pro-abortion rights witnesses

Anti-abortion rights witnesses

The examples I will discuss don’t even include the stupidest things said, such as:

• Georgia Congressman Jody Hice asking the witnesses if there is “any instance of a woman giving birth to something that is not a human being, like a turtle“
• Florida Congressman Matt Gaetz arguing to Sarah Warbelow that abortion is a net negative for the LGBTQ+ community because there are more same-sex couples looking to adopt than there are lesbian and bisexual women who get raped
• South Carolina Congressman Ralph Norman asking Sarah Lopez, Renitta Shannon, and Fatima Graves if they support infanticide;
• and of course, Missouri Senator Josh Hawley denying that trans men exist.

By the third day, I was so tired of hearing the same anti-abortion talking points that I found myself skipping some of them. I assume that there are simply not enough arguments one could make against abortion rights that they wouldn’t begin to repeat even during the first day. There were three main points that I heard so many times, some of which were rebutted and some of which were not.

1. The decision simply went back to the states

This argument took many forms. Congresspeople asked witnesses, “Does the Dobbs decision ban abortions?” and insisted that elected officials, not unelected Supreme Court Justices, should determine policies like this. As Denise Harle explained it,

The Dobbs decision provides tremendous hope for women and unborn children across this country. For the first time in half a century, the people, through our elected representatives, have the legal authority to affirm the dignity of women and fully protect unborn babies. The Supreme Court was correct to overrule its egregious decision in Roe v. Wade, where seven male justices insulted women’s dignity by saying that motherhood forces upon us a distressful life and future.

and later,

There are a couple of problems. As a Constitutional matter, Congress does not have the authority in its Constitutional powers to impose a national abortion regime upon the states. You can’t find that in the Congress Clause, you can’t find that anywhere in Congress’s powers. That would be a gross overreach and would trample on principles of federalism.

There are several other examples of Republican Congresspeople and anti-abortion witnesses insisting that if we want to legalize abortion, all we need to do is vote for pro-choice legislators at the state level. The idea is that it would be wrong for a federal law to force abortion rights on the unwilling.

This makes absolutely no sense.

If someone wants or needs an abortion in a state where it is illegal, these people suggest, then that person should simply vote for a pro-choice legislator who will make it legal. But unfortunately, it’s never a guarantee that whoever you voted for will win. So “giving the rights to the states” in order to give individuals more power over abortion rights won’t actually help those who need abortions if their pro-choice candidate lost. This would be the case even without massive voter disenfranchisement and partisan gerrymandering.

The anti-abortion witnesses, especially Harle and Glenn Foster, emphasized that it is far more democratic to allow the states to self-govern and choose their abortion rights for themselves. This might make sense if the law was concerning something that everyone must do, but instead abortion-rights laws concern something that individuals may choose to do. How can Roe be government overreach when it is not forcing anyone to get an abortion who does not want one?

If one lives in a state in which abortion is outlawed, and they need one, they can’t get one. If one lives in a state in which abortion is legal, and they are anti-abortion, then… what? They’re acting as if that’s an infringement upon their rights to be “pro-life”. They know that abortion being legal doesn’t mean abortion is mandatory… right? Whether it is legal or not, no one will, or ever would, or even could, force a constituent to get an abortion. The only way to unfairly impose an abortion right on someone is to make it illegal. Not legal.

2. Therapeutic abortion isn’t actually abortion

Here’s something fun that happened on Day 3:

California Congressman Eric Swalwell (D): Miss Foster, do you think a 10-year-old would choose to carry a baby?

[following a bit of interrupting and speaking over one another]

Catherine Glenn Foster: I believe it would probably impact her life, and so therefore it would fall under any exception and would not be an abortion.

Swalwell: Wait. It would not be an abortion if a 10-year-old, with her parents, made the decision not to have a baby that was the result of rape?

Glenn Foster: If a 10-year-old became pregnant as a result of rape, and it was threatening her life, then that’s not an abortion. So it would not fall under any abortion restriction in our nation.

Swalwell: Ms. Warbelow, are you familiar with disinformation?

Sarah Warbelow: Yes, I am.

Swalwell: Did you just hear some disinformation?

Warbelow: Yes, I heard some very significant disinformation. An abortion is a medical procedure that individuals undergo for a wide range of circumstances, including because they have been sexually assaulted, rape in the case of the 10-year-old. It doesn’t matter whether or not there is a statutory exemption, it is still a medical procedure that is understood to be an abortion. Beyond that, I think it’s important to note that there is no exception for the life or the health of the mother in the Ohio law. That’s why that 10-year-old had to cross state lines in order to receive an abortion.

This exchange is wild, but it is actually echoed in (at least) two Federalist articles, one about the ten-year-old girl, and one, by Denise Harle, about miscarriages.

Glenn Foster went on a few minutes later,

Pre-teen pregnancies: they are high-risk and they fit the life exemption, and so that isn’t actually an abortion, because the primary intent is to save the girl’s life. An abortion is the intentional ending of a human life in the womb prior to birth, and that’s not what would be going on there.

Erin Morrow Hawley says the same thing on Day 2.

This sent me down the rabbit-hole of specifically defining the word abortion, which is a lot harder than it might sound. What I know for sure is that the anti-abortion people cannot create their own definition of abortion in which it only counts if there is some sinister or malicious intention to murder a little baby. As far as I knew, abortion is the termination of a pregnancy.

As it turns out, there is an entire Wikipedia page not even about abortion itself but just about its many definitions.

There is some gray area about what can actually count as an abortion. Several definitions say that it is any termination of a pregnancy before viability and that it even includes miscarriages, which are “spontaneous abortions”. For example, Merriam-Webster defines abortion as “The termination of a pregnancy after, accompanied by, resulting in, or closely followed by the death of the embryo or fetus.” Even within the gray area, one thing is certain: the reasons behind the choice, whether it is elective or therapeutic (medically necessary), do not affect whether or not it is an abortion.

Similarly, I wondered whether the removal of an ectopic pregnancy was an abortion, which brought me to wonder whether an ectopic pregnancy should count as a pregnancy at all. Anti-abortion people will argue that it only counts as an abortion if the embryo or fetus involved is in the uterus, but doctors disagree. Even the treatment for an ectopic pregnancy, which makes up about 2% of pregnancies, totaling over 125,000 pregnancies a year, is still an abortion procedure, which Massachusetts Congresswoman Ayanna Pressley so clearly explains to Hawley on Day 2.

So it’s great that Harle and Glenn Foster would say that a life-saving abortion “doesn’t count,” but neither Catholic ERDs, nor lawmakers, agree or care.

3. The One-Sided CPC/SCOTUS persecution complex

Over and over and over again, the Republicans at these hearings cried persecution on behalf of vandalized crisis pregnancy centers and over the recent treatment of Supreme Court Justices Brett Cavanaugh and Amy Coney Barrett. Besides the protests outside Cavanaugh’s home, Cavanaugh had an assassination attempt, and Coney Barrett’s church and her children’s school were leaked.

Obviously, these things are wrong (although I think the protests themselves were justified).

At the beginning of the third day, Ohio Congressman and Ranking Member Jim Jordan spoke for 10 full minutes listing individual examples of violence against churches and CPCs following the leaked Dobbs opinion draft. Again, these actions are obviously wrong. But know that Jordan shared only 50 examples, almost all of which were merely property damage and/or vandalism. A handful involved fires, but as far as I know, no one was injured or killed. And even so, time and time again, the Democratic Congresspeople and abortion-rights activist witnesses echoed the Republicans’ condemnation of these actions.

On Day 2, California Congresswoman Jackie Speier says,

Let me say at the outset to my good friend Mr. Jordan and to others on the Republican side, yes, we deplore violence against crisis pregnancy centers. We deplore violence against justices and judges. We deplore violence against the institution we call the US Capitol.

We also deplore violence against abortion clinics, and you have said nothing about the fact that 11 people have been murdered at those clinics. Four doctors, two clinic employees, one security guard, one police officer, and one clinic escort. Last year there were 186 arsons targeted at abortion centers, there were 123 acts of vandalism, 123 incidents of assault and battery. Stalking increased by 600 percent last year over 2020. Invasions of abortion facilities increased by 129 percent. Assault and batteries increased by 128 percent, and suspicious packages by 163 percent. I did not hear one word from any of you deploring and denouncing those acts of violence, so you have very selective memories.

Very selective memories indeed. In addition to the dozens of acts of violence against abortion clinics recounted by the witnesses on the first day (which greatly overlap with the ones recalled by Speier), anti-abortion fanatics have a long history of violence against abortion clinics, up to and including bombings and murder. James Risen and Judy Thomas’s 1998 book Wrath of Angels: The American Abortion War goes into great depth about this violence, and I will be reviewing it in the coming weeks.